Rooks: Removing the Roadblocks to Health Policy

Friday

A Maine non-profit health insurer won a signal victory April 27 when the U.S. Supreme Court ruled, 8-1, that the federal government must pay money promised under the Affordable Care Act.

Community Health Options, based in Lewiston, became the lead plaintiff in an insurer’s lawsuit that will require payouts of $12 billion, based on a now-defunct program called "risk corridors," which encouraged insurers to expand their offerings to under-served areas when the ACA started its insurance exchange. Community Health Options will receive a modest $59 million, but when future historians consider the "health care wars" of the early 21st century, this case will have a prominent place.

In short, it reveals the utter mendaciousness of the Republican program for health care in the time of coronavirus, something that doubtless will be on voters’ minds in November.

The "risk corridors" program was, in essence, a substitute for the "public option" – direct sales through the federal government – that President Obama declined to push for when the ACA was taking final form. Fledgling cooperative insurers, of which Community Health Options is a rare survivor, were encouraged to take risks in expanding coverage, with the assurance that the federal government would compensate for losses – and collect profits, if any.

Starting in 2015, however, Congress, now under full Republican control, reneged on the deal. Without repealing any statutory language, the GOP simply zeroed out payments under the "risk corridors" program.

A strong majority of an often-divided Supreme Court found this impermissible, under contract law and provisions of the Tucker Act, which allows private parties to sue the government under certain circumstances. So, justice was done in this small, but significant instance.

Whether justice will be done in a much larger case remains uncertain. In a lawsuit launched by Texas, some 20 states with Republican governors claimed the entire ACA is unconstitutional because – upping the ante from the "risk corridors" budget maneuver – Congress in 2017 eliminated the financial penalty for not having health insurance, the so-called "individual mandate."

Again, nothing else in the law changed – previous attempts to repeal the law in Congress, or get the Supreme Court to declare it unconstitutional, had failed, so why not try another budgetary maneuver?

This transparently dubious legal strategy somehow convinced a federal judge in Texas to agree that the entire law was unconstitutional, and a 2-1 vote by a 5th Circuit Court of Appeals panel agreed, though limiting its effect to the insurance mandate. The Supreme Court is also considering issues in the case, and will likely hear arguments this fall.

The confusing maze of legalese has kept these cases out of the headlines, but the effect on federal efforts to reform our benighted health care system is unmistakable. It has placed innumerable obstacles in the path of creating a more responsive public health system – what the ACA, in its imperfect way, was trying to do.

The late GOP Sen. John McCain famously turned "thumbs down" on the original bid to scuttle "Obamacare," but the battle continues, block by block, trench by trench. It wouldn’t be so frustrating if Republicans actually had a plan for health care, but they don’t.

When elected in 2016, Donald Trump promised a "great" plan for health care by his first week in office. Three and a half years later, and six months before he attempts re-election, we’re still waiting.

This is no longer surprising, since Trump had no plan for a pandemic, either, and even now seems unable to steer the federal response, leaving everything up to the nation’s governors.

The difficulty we now face is that, while the ACA remains the leading edge of government planning for health care, only one of the two major parties supports it.

Major reforms usually take hold only when there’s broad agreement across the political spectrum, with different factions having contrasting – but still rational – positions. Instead, we have one party bent only on blocking what the other proposes, then arguing that the citizenry is divided and nothing can be done.

This circular argument is indeed head-spinning, which is why it’s so difficult to chart a path forward. Coronavirus may overcome this difficulty, however.

In November, voters will be asking whether we’re ready for another pandemic, and what we’ve learned from this one. Neither side will have perfect answers, but it will be important to have some answers.

Do we want a repetition of what we’ve just seen, or will we place our trust in a different approach? The stakes couldn’t be higher, and obstructionism may no longer be a winning strategy.

Douglas Rooks, a Maine editor, reporter, opinion writer and author for 35 years, has published books about George Mitchell and the Maine Democratic Party. The views expressed are those of the writer. He welcomes comment at drooks@tds.net.

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